Charities (Protection and Social Investment) Bill [HL]

Debate between Baroness Hayter of Kentish Town and Baroness Pitkeathley

Wednesday 1st July 2015 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the amendment stands in the names of my noble friends Lord Watson of Invergowrie and Lord Lea as well as my own. It essentially restates the current legal position, as it is well established in charity law that campaigning and political activity can be legitimate, indeed valuable, for charities, provided that they are undertaken to achieve their charitable aims.

The Charity Commission’s guidelines on campaigning and political activities, known to us in the field as CC9—technically called “speaking out”—recognise that there may be situations where carrying out political activity is the best way for trustees to support the charity’s purposes. Indeed, charities have used the opportunity of elections to promote their charitable objectives for more than 100 years to raise concerns and gain attention for their charitable aims. It is clear that, although a charity cannot exist for political purposes, it can campaign for a change in the law or a change in policy, or on decisions where such a change would assist the charity’s objectives. Charities can also campaign to ensure that existing laws are observed.

However, following the transparency of lobbying Act—I am delighted to see here the noble Lord, Lord Wallace of Saltaire, whom we would say was the guilty party on that Act—we know that there is a very difficult interplay between charity law and electoral law, particularly over non-party campaigning rules. There is insufficient clarity now on whether and when awareness-raising on policy and legitimate non-partisan campaigning by charities would be regulated by the Electoral Commission, even where activities were not intended to have any electoral effect.

The NCVO is therefore concerned that charities could be deterred from engaging in public policy and speaking out on behalf of beneficiaries during election periods. With local, European, devolved and general elections, we seem almost always to be in an election period.

The NCVO wants charities to have maximum clarity as to what comes within the scope of the non-party campaigning rules, so that legitimate campaigning is not inhibited. We share that aim. The problem is that the recent Act broadened the definition of what counted as political expression while reducing the threshold at which organisations caught by the new definition had to register with the Electoral Commission. They thus have to comply with more red tape than most businesses seem to have to do in a year.

Indeed, the Act represents a radical change to the regulatory environment for charities, and it has constrained, if only by a chill factor, charities’ legitimate activities. When the then Bill was in the House, the noble Earl, Lord Clancarty, feared that it would,

“put Westminster further into a bubble”,—[Official Report, 22/10/13; col. 923.]

by cutting out a much-needed source of intelligence to SW1. We think that this has happened.

More than that, the Act increases the imbalance between the controls on commercial lobbying and similar activities by charities on behalf of those with the least access to decision-makers. Not only can well-heeled drinks or defence companies have free rein to lobby, to campaign and to further their interests, so can groups, such as the TaxPayers’ Alliance, which has a clear campaigning rule. However, because they are not charities, they face no regulatory or transparency rules.

We wholly concur that a charity’s sole purpose should not be to campaign, must never be party political, nor involved in the electoral process, and that they should campaign only to achieve their charitable aims. The charities believe that they have been unfairly treated by the new Act and are genuinely bemused by such treatment, given that every political party, including that of the Minister, purports to support the work of charities. Indeed, many parliamentarians from across the political spectrum are actively involved in at least one charity.

The NCVO reports that confusion over the law is now widespread, leading to charities unduly self-censoring. For example, the charitable arms of two well-respected churches, which both provide an extensive network of social care and have advocated for policy change for over 150 years on behalf of the people they support, have come to different conclusions about what advocacy they can now undertake, how they do it and how to account for it. They are confused about what counts as controlled expenditure and are fearful that the new legislation means that almost anything that a charity or coalition does to advocate policies in the year before an election might be judged to impact on the success or failure of a particular party or candidate.

Indeed, trustees of some charities appear so scared of infringing the rules, as well as being bemused by the difficulties of calculating staff costs, particularly geographically, that they have stopped the charity from campaigning. Others have reached a different conclusion and have decided to risk running outspoken campaigns on the grounds that, as they make the same points to whoever is in government, they are not seeking to influence any one party.

What is most worrying for democracy is those other charities which feel that they cannot risk advocating on behalf of their charitable aims or their charitable beneficiaries. It is surely wrong and, due to the uncertainties created by the lobbying Act, some charities believe that they cannot speak up on behalf of their users or campaign to achieve their charitable objectives. Decision-makers lose that input and the voiceless lose their advocates, and this is in a democracy like ours, which is such a strong and vibrant civil society.

The intention of the amendment is clear; that is, to give confidence to trustees that the existing legal position remains untouched by the lobbying Act. They can undertake campaigning or political activity in furtherance of their charitable purposes. They can campaign to build support for, or oppose, a change in the law, the policy or the decisions of central government, local authorities or other public bodies. I beg to move.

[Baroness Pitkeathley (Lab)]

My Lords, I support this amendment and speak as the former chief executive of Carers UK, a very successful campaigning organisation, which, arguably, could be credited with making caring and carers, once an entirely private matter, the public issue that we all recognise today. I submit that that came about almost entirely through the campaigning of the carers’ organisations. I very much agree with my noble friend that there is now confusion, since the lobbying Act, about what is legitimate and what is not so far as charities are concerned at election periods.

At present, we do not have the maximum clarity which my noble friend has called for. I draw the attention of your Lordships to the lack of profile which charities had in the recent general election. In the past, it was commonplace for charities or groups of charities to hold hustings at which all parties could set out their wares. We heard very little of that in the last general election.

I hope that the Minister will confirm that he supports the rights of charities to campaign for policy changes which will benefit their client group. Of course, that could be called political—changing policy is political—but it is very much small-“p” politics, not party politics, and charities are very much aware of that.

Charities (Protection and Social Investment) Bill [HL]

Debate between Baroness Hayter of Kentish Town and Baroness Pitkeathley

Tuesday 23rd June 2015 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I remind the Committee of my interests as a trustee of a number of quite small charities. In moving Amendment 2, I shall speak also to Amendment 7, both in the names of my noble friend Lord Watson and myself. As with the next group, these amendments are to improve the safeguarding of children and vulnerable adults, particularly in regard to sexual abuse.

Amendment 2 concerns the power for the Charity Commission to check on disclosure and barring service checks undertaken by charities. It follows concerns raised by Mandate Now, a pressure group supported by the Survivors Trust, which lobbies for mandatory reporting of abuse, and is led by adults who experienced child abuse in establishments that were also charities. Mandate Now told us of a charity providing education; in its inspection report, there were references to failure to return—that is, notifications—but the staff concerned went on to abuse elsewhere. They also told us about a charity providing education where the press reported that the head in that case had phoned a receiving establishment to warn it of an abuser who was applying to work there. However, no formal notifications were found that might have ensured the known abuser would not offend elsewhere, and—this is the important thing—the trustees do not appear to have challenged the head.

In 2010, an inspection report on another educational establishment registered with the Charity Commission said that there was no,

“established policy for reporting directly to ... the Independent Safeguarding Authority, responsible for such referrals … The advisability of making such referrals is now clearly understood even when there may not be a strict legal obligation to do so”.

Our concern is that it is advisable only—there is no compulsion. In the case that I have just mentioned, neither the management nor trustees made any referral to what is now the DBS, which meant that it did not lead to any action. No action was taken about those trustees for not making those reports.

I think we can all agree that notification should not be an optional extra. More than that, the Charity Commission should be able to check that the system is working as intended. Relying on trustees always to do the DBS checks obviously does not always work.

Another example occurred in an educational establishment which happened to be run by a religious order, where the head ignored the enhanced check, which showed a history of child abuse offences for the new chair. It appears to be rather discretionary as to whether trustees act on information provided by the DBS, when there are no independent checks by a third party that the correct procedure is happening. Amendment 2 gives a power—not a duty—to the Charity Commission to undertake such checks.

Amendment 7 covers perhaps the most glaring anomaly in the current law, which is that someone who has got into debt and is subject to an individual voluntary arrangement, or a person with financial misdemeanours behind them, is automatically excluded from being a trustee, but people on the sexual offenders register, who have surely done far worse than run up their credit card debt, can happily serve as a trustee. To date, the Government have said that when something comes to light, or in areas covered by the DBS, such people should be identified. That is not good enough. We do not want to wait until something has happened, or until other trustees get suspicious and then have to act, possibly against someone with whom they have been working closely on the trust. Nor is it sufficient to deal only with charities which obviously are in contact with children, and thus covered by DBS. There may be other examples, such as a church hall that gets used by guides, or for children’s parties. That would not have been covered.

An alcohol misuse charity could decide to run a special programme for the children of problem drinkers or, similarly, a cancer group could offer support to the children of cancer patients. They would not be covered by the current safeguarding regime. Who would think to check on the background of someone, particularly if they were offering to be the treasurer of such a charity? It is a thankless task, as I know. Trustees are all too willing to sign up a suitably qualified person without a thought for their wider background. Indeed, I have had dealings with an accountant who, unbeknown to the trustees using him, admittedly as an adviser rather than a trustee, had been convicted, although not imprisoned because he was having a kidney transplant, as he had been found with more than 1,000 images and videos of child sex abuse on his computer. None of the trustees knew about it.

I know that many trustees are very sympathetic to our proposal to add sexual offences to the criteria that trigger automatic disqualification from being a trustee. Of course we would want a waiver for charities working with ex-offenders which need that input to help them in their work. Those charities would know of the record and there would be no secret.

We also know that many smaller charities, particularly parish charities, depend on hard-pressed volunteers and already find the expanding vigour of the Charity Commission guidelines and reporting somewhat burdensome. Expecting those trustees to think and risk-assess before they approach a new trustee is quite a burden to put on them. Surely the onus should be on the person on the sex offenders register to know they should not, without a waiver, be a trustee. We should not to leave it to chance that someone else would spot it and consider whether it makes them a risk.

This is an opportune moment to add being on the sex offenders register as a category for automatic exclusion, subject to waiver, as this Bill adds terrorism, money-laundering and bribery to such automatic exclusions. I assume that the Government are as concerned about safeguarding children, women and other vulnerable people as they are about debtors and money-laundering. I am therefore very hopeful that this amendment can be accepted. I beg to move.

[Baroness Pitkeathley (Lab)]

My Lords, the noble Baroness, Lady Barker, and the noble Lord, Lord Hodgson, talked about concentrating the mind of trustees. The main attribute of my noble friend’s amendment is to work further on that concentration of the mind. Contrary to the assumptions often made that charities regulated by the Charity Commission are the large household names which have skilled, informed trustees who are offered training and induction, most charities are not like that. They are small, with governance that can be a bit hit and miss for some of the reasons we have heard: the difficulty of getting volunteers and so on. I venture to suggest that the majority have no idea about the Charity Commission and its powers and have a very hazy concept of collective responsibility, which we will discuss in the next group of amendments. History shows us that we cannot take the protection of children too seriously. We must also be aware of the serial, repetitive nature of some sexual offences and of the great skill in deception that sexual offenders often have. I therefore very much support these amendments. However, I am wary of the need for balance, which the Minister reminded us about, so I am very pleased that the amendment acknowledges that some charities need positively to seek trustees with experience of, even convictions for, these offences so that they can be helped in their work of rehabilitating offenders.